John Gibeaut reports at the ABA Journal that the role of the Department of Justice’s Office of Professional Responsibility has descended to a level equivalent to that of a ‘Roach Motel’ and how, as a result, judges are beginning to take the discipline of unethical attorneys into their own hands. In his lengthy article, Mr. Gibeaut details the ‘dismal history of intentional and inadvertent violations’ by federal prosecutors and the complaints to DoJ OPR made by Judge Mark L. Wolf, Chief Judge for the U.S. District Court for the District of Massachusetts, that yielded woefully inadequate DoJ OPR investigations and slap-on-the-wrist ‘punishments.’ The article begins with the following summary:
The government’s evidence linking reputed mob figures Vincent “the Animal” Ferrara and Pasquale “Patsy” Barone to a 1985 murder was pretty thin—an accomplice who escaped prosecution in exchange for testimony against the pair.
But a little over a year after the 1990 racketeering indictments of Ferrara, Barone and six other members of New England’s Patriarca crime family, a federal prosecutor in Boston learned his putative star witness had recanted.
Yet the prosecutor never told defense about the recantation, which he and a detective recorded in writing. Indeed, the defendants didn’t learn of the memos until 2003, when the detective spilled the beans at a hearing on habeas corpus petitions they filed seeking their release from long prison sentences.
Ultimately both went free, Barone in 2003 from a life sentence and Ferrara in ’05 from a 22-year term. Chief U.S. District Judge Mark L. Wolf, who had imposed both sentences, was forced to cut them short.
The prosecutor, Assistant U.S. Attorney Jeffrey Auerhahn, was investigated by Massachusetts state bar authorities. Wolf dropped a dime on him after learning that Auerhahn’s boss had simply reprimanded him behind closed doors. That just wasn’t good enough for Wolf, considering he had to release two defendants regarded as especially dangerous. Auerhahn still works at the U.S. attorney’s office in Boston, prosecuting terrorism cases.
But, going where few judges would, Wolf also penned an extraordinary series of letters—first to Attorney General Alberto R. Gonzales and then to his successor, Michael B. Mukasey—stating his case for stiffer punishment and voicing his frustration with the Justice Department’s secretive Office of Professional Responsibility, which is supposed to investigate complaints of misconduct by prosecutors and law enforcement officials who work for the department.
“The department’s performance in the Auerhahn matter raises serious questions about whether judges should continue to rely upon the department to investigate and sanction misconduct by federal prosecutors,” Wolf wrote in a January 2008 letter to Mukasey.
Wolf, appointed by President Ronald Reagan in 1985, warned Mukasey that more jurists would begin punishing prosecutors behaving badly if the OPR didn’t.
“I anticipate this will become much more common unless the department’s performance in disciplinary matters improves significantly,” the judge cautioned.
Wolf’s stinging rebuke came not only from a veteran jurist, but from someone who as a young prosecutor helped set in motion the department’s disciplinary machinery in the aftermath of the Watergate scandal.
“As one who took pride in assisting Attorney General Edward Levi in establishing OPR more than 30 years ago,” Wolf told Mukasey, “I sadly doubt it is now capable of serving its intended purpose.”
Critics historically have regarded the OPR as inept at policing its own. Wolf’s exchanges with the attorney general also come amid calls for more transparency.
“I used to call it the Roach Motel of the Justice Department,” says Fordham University law professor Bruce A. Green, a former federal prosecutor and ethics committee co-chair for the ABA Criminal Justice Section. “Cases check in, but they don’t check out.”
The entire article is well worth reading.