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Monday, July 06, 2009

Brady and Prosecutorial Compliance

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? 

Posted by Miriam Baer on July 6, 2009 at 03:07 PM | Permalink


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I think there is a difference between concern about the Brady standard itself (e.g., is it too narrow to be of assistance to defense counsel) and about compliance with the standard as it exists. What is remarkable about the Stevens and other Alaskan prosecutions is that the DOJ effectively admitted that it had failed to hand over material that should have been produced.

One of the aims of the post is to see if it would be helpful to view address Brady violations as part of larger organizational problems, and then use what we have learned from corporate compliance to remedy such problems. I should also add that I think that compliance has a lot of limitations (see my earlier post from last week), but it seems to me that this too would be salutary: the government itself would learn and recognize the limitations of internal compliance as a means of identifying and preventing violations of previously set standards and rules.

Posted by: Miriam Baer | Jul 7, 2009 4:40:20 PM

Thanks for this very interesting post. My experience is with (NY) State prosecutors offices, working as a criminal defense attorney (and a year clerking in the SDNY). In 5 years in NYC and now 4 running a clinic in Syracuse, I have been given Brady material a sum total of...one time. That was when a witness went to the ADA and told him that the police had arrested the wrong person for an assault - and also told the ADA that he had already been to my office to tell me the same. Several weeks later, the ADA told me about the witness' visit when we happened to meet in the hallway.
Yet I have litigated numerous cases where clear Brady material eventually surfaced, almost always from my own investigation but often coming from sources who have spoken with law enforcement or the prosecutor directly. Sometimes I find the Brady in a general discovery packet (which, under NY state law - like the federal rules - comes very late in the process). Part of the problem, as you note, is the enforcement mechanism, which relies on formal reporting. And that reporting must come from either a judge - who works with prosecutors on a regular basis, leading to a number of reasons for failing to report even eggregious behavior (as we've seen in some of these reports) - or from the defendant or defense counsel. Interesting that none of the federal complaints came from the public defender's office.
But a real culprit here, which perhaps you did not mention because it is so well-covered in the literature on Brady, is the toothless standard of constitutional enforcement. What is the effect on any incentive to undertake internal compliance when so much bad behavior is constitutionally sanctioned - and reported in the cases - under the Court's impossible-to-meet materiality standard?

Posted by: Jenny Roberts | Jul 7, 2009 4:08:51 PM

I think we are on more or less the same page.

I can only speak for the Southern District of New York, but my sense was that there were grave reputational costs for engaging in professional misconduct and that one would suffer deep consequences in terms of disrespect, and lost opportunities for working on great cases and advancement to unit chief, etc. if one intentionally engaged in professional misconduct.

That being said, different US Attorneys Offices will exhibit different cultures, and I do agree with you that OPR cannot possibly be picking up the entire universe of violations that occur in federal prosecutions.

I also agree that one might need more mechanisms than "internal compliance" to deter prosecutorial misconduct. However, internal compliance is surely a good place to start. In most cases, misconduct is not likely to surface because most defendants will enter into plea bargains and move on. For that reason, neither individual nor entity-based civil nor criminal liability for prosecutors is likely to make a big dent because the likelihood of detection will remain fairly low.

Borrowing from the compliance literature (and from the New Governance/responsive regulation literature as well), if you really want to prevent violations (and not just punish them ex post), you would look for unintentional violations and/or organizational weaknesses that either lead to or exacerbate such violations. In other words, you would investigate more often (and more broadly) and you would create multiple feedback loops for improving performance. Most of all, you would try to recognize both the organizational and human weaknesses that might lead to the violations and you would find ways to improve internal structures to prevent them.

As to why would the AG do such a thing right now? Because a stronger internal compliance mechanism that looked proactively for problems ex ante might avoid some of the nasty embarrassments that occur when the emphasis is on punishing "really bad" violations ex post.

Posted by: Miriam Baer | Jul 7, 2009 3:50:13 PM

As between your two potential interpretations of the OPR data, I certainly view the second as more plausible. I have not worked within a prosecutor's office, but I have worked with and litigated against both police departments and prosecutors such that I have a decent sense of how supervision, discipline, chains of command, and professional reputations operate. The notion that prosecutors who otherwise follow the letter and spirit of Brady *only* transgress their constitutional obligations in spectacular fashion, as opposed to (more plausibly) the spectacular transgressions representing the culmination of tolerated quotidian violations, strikes me as absurd on any number of levels. The work of prosecutors is often fairly collaborative and exposed (a given case is often handled at different stages by several members of an office, including multiple layers of involvement from line-level to supervisor even just at the trial stage), and it strikes me that prosecutors who commit the block-buster Brady violations that actually trigger review and sanction must not be terribly embarrassed about what they're doing. (Consider the Stevens case, e.g. How many prosecutors knew about the censured conduct when it was going on?) Impunity in the face of a well-known, fundamental obligation can only emerge out of systemic disregard, and signals of tolerance through the chain of command.

But I'm more interested in your "what do we do about this" thoughts. You note that the current mechanisms for internal oversight are dysfunctional, and make the clever analogy to corporate prosecution. Of course, part of the point of corporate prosecution is that there are multiple mechanisms for oversight: not only internal monitoring, but also the threat of criminal prosecution (both corporate *and* individual), as well as the threat of civil suit. Prosecutorial misconduct is currently amenable to oversight from only, at best, 2 of those avenues - - but really more like 1.5 at best: internal monitoring is available but broken; criminal prosecution is available but for a variety of entrenched reasons is never used; civil suits are effectively not an option (putting aside, maybe, entity claims under Section 1983). Are you putting all your eggs in the step-up-internal-monitoring basket? Do you think that other legal mechanisms have a role to play in reinforcing appropriate incentives in that regard - either at the individual or office level? Do you think that a decision like Van de Kamp v. Goldstein has any significance in this regard, or do you think that supervisors or elected DAs are insensitive to threats of civil suit in any event?

Posted by: J. Laurin | Jul 7, 2009 3:18:50 PM

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