Justice Department Creates New Unit to Investigate Prosecutorial Misconduct

No matter what a federal prosecutor does during a trial – from withholding evidence that could set an innocent person free to flat out lying to the jury – they enjoy absolute immunity from civil liability, meaning the worst that can generally happen is they'll receive a sternly worded letter from their superiors imploring them to do better (i.e. not get caught) the next time.

Last year, USA Today – best known for those fancy graphics depicting Americans' soft drink preferences and other important polling information – published a truly impressive series identifying more than 200 cases where Justice Department lawyers, the cream of the government legal crop, engaged in flagrant prosecutorial misconduct “that put innocent people in jail and set guilty people free” with little in the way of repercussions. In response, more than 470 Change.org members petitioned the Justice Department to step up its efforts to punish prosecutorial misconduct.

In response to USA Today's series – not that the Justice Department would admit that – Attorney General Eric Holder this week announced the creation of a Prosecutioral Misconduct Review Unit that he cast as way to streamline the department's disciplining of its lawyers for gross ethical violations.

“The current procedures for resolving these disciplinary matters consume too much time, and risk inconsistent resolutions, but this new unit will help change that by providing consistent, fair, and timely resolution of these cases,” Holder said in a press release “In the vast majority of cases, department attorneys meet their professional obligations but when allegations of misconduct occur, all parties deserve a fair and timely resolution.”

The unit will be headed by Holder's current chief of staff, Kevin Ohlson, and will review cases involving “intentional or reckless” misconduct. The press release announcing the unit's creation is conspicuously silent on what in the way of punishment it will be able to dole out.

While the move is welcome, one shouldn't assume it actually will do anything to fight the scourge of prosecutorial misconduct, which Pace University law professor Bennet Gershman told USA today is now “systemic.”

“T]he system is not able to control this type of behavior,” Gershman said. “There is no accountability."

And not to be too cynical, but we are talking about politicians here – and yes, attorney generals are just as much politicians as the people who appoint them – who are generally big on symbolic gestures to placate the masses, but not so much on genuine, meaningful reforms that could jeopardize the careers of their buddies in law.

And assuming the new unit actually does find prosecutors engaged in wrongdoing, it's not clear what they'll actually do about it. Indeed, it would be too strong to say previous Justice Department lawyers found to have engaged in gross misconduct got slaps on the wrist. After the department's Office of Professional Responsibility found one of its lawyers, Stephen Kunz, had engaged in misconduct in “reckless disregard” of his obligations to the public – he helped prosecute an innocent Florida couple whose five-month-old child went missing, apparently fabricating a damning conversation supposedly captured on a wiretap – he was suspended for a grand total of two days: a Saturday and Sunday.

So yeah, it's great and all that Attorney General Holder is creating a new unit to focus on prosecutorial misconduct. But don't hold your breath waiting for results.

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Photo Credit: U.S. Department of Argriculture