Pittsburgh Post-Gazette - Win at all costs

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'Win at all Costs': The Justice Department responds

An unbalanced view, myriad errors - and offensive for suggesting that misconduct is widespread

Sunday, January 03, 1999

By Eric Holder, Deputy Attorney General

Your recent 10-part series by Bill Moushey ("Win At All Costs," Nov. 22 to Dec. 13), criticizing the conduct of prosecutors, relies largely on the allegations of criminals and their defense attorneys. As a result, it wrongly concludes that federal prosecutors and agents "routinely" engage in misconduct.

The series presents an unbalanced view; contains myriad factual errors; often neglects to report that the allegations have been rejected by the courts; and fails to acknowledge that, in the rare cases where misconduct has been found to have occurred, appropriate action has been taken.

While there are too many factual errors in the series to discuss, here are just a few:

The series claims that a woman who testified against her brother for his part in a drug operation did not have her sentence reduced - even though her testimony put the brother away for life. In fact, prosecutors did seek a reduction, and the judge reduced her sentence by 10 years.

The series claims that "nothing was ever made public" about an internal Justice Department investigation into allegations of misconduct in a case involving a Chinese national. In fact, the Justice Department publicly released a 45-page summary of its investigation in 1996, finding that the prosecutor had engaged in professional misconduct.

The series implies that when an FBI agent stole heroin from an evidence room, he was not prosecuted and punished promptly. It asserts that, although the agent was arrested in 1994, he is still awaiting trial. In fact, the agent pleaded guilty within four months of his arrest and is now serving a 25-year sentence.

In other instances, the series simply rehashes allegations made by defendants trying to get their convictions overturned - allegations that often are exaggerated or simply fabricated, and in many cases already have been rejected by the courts.

But the series does not present the full story. Again, here are a few of the many examples:

The series claims that an appellate court reversed the conviction of a drug dealer in part because he had been "cajoled and entrapped" into committing the crime. And it states that the dealer is awaiting a new trial.

However, the series never explains that the appellate court withdrew its earlier opinion and explicitly found there was no misconduct by the prosecutors. Nor does it mention that, following the appeal, the drug dealer pleaded guilty and admitted to the court that he had not been induced to commit the crime.

The series claims that prosecutors unfairly charged a man with perjury just because he had been acquitted on charges of cocaine trafficking. And it adds that the man has now been in prison for seven years but "has yet to be convicted of even one crime."

In fact, the man was charged, not with perjury, but with obtaining and using false documents. And the series does not mention that the man jumped bond in the middle of his trial and, after being rearrested, pleaded guilty to the charges, as well as to charges of possessing a false U.S. passport.

The series implies that a convict testified falsely against a reputed mobster in a murder case just so he could get his sentence reduced. It also contends that the convict was fed information about the murder, which the convict now claims he knew nothing about.

However, the series fails to note that the information the convict provided led not only to the discovery of the murder weapon, but to the fact that the weapon was registered to his own father. That is hardly the type of information that would have been provided by someone who knew nothing about the murder.

The series chastises prosecutors in a South Carolina public corruption case for allegedly engaging in misconduct. However, on Nov. 23, the appellate court completely exonerated the prosecutors, finding that the allegations rested on "innuendo," and were not supported by the facts.

The series focuses on a witness who, in one case, claimed he was a small player in a drug trafficking organization. In a later case, he claimed he was a big player. The series reports the government failed to inform the defense of the inconsistent statements or disclose the witness' criminal background.

In fact, the prosecutors gave defense counsel the FBI's investigative reports detailing the inconsistent statements, and the defense counsel even cross-examined the witness at trial about it. Further, the prosecutor, himself, brought out the witness' criminal background at trial.

The series discusses a case against a defense attorney who was charged with drug violations. It claims that prosecutors failed to disclose that a witness, who supposedly handled the purchase of drug boats for the attorney, had told government agents that he did not even know the attorney.

In fact, the witness never made such a statement and even testified at trial that he had known the attorney. Further, the other allegations in the series are a virtual verbatim recitation of the attorney's motion to dismiss - a motion that the court denied nearly two years ago, ruling it was "replete with . . . exaggerations." The series mistakenly reports that the motion has yet to be decided.

Certainly, not every prosecutor is perfect. As in any profession, there are a few individuals who may cross the line. And in some cases cited in the series, prosecutors did just that. But the series wrongly suggests that we do not punish prosecutors when misconduct is proven.

In fact, in at least 20 of the cases discussed, the Justice Department's Office of Professional Responsibility (OPR) conducted investigations, and it took action in nearly half of those. In several other cases, investigations are pending.

And in most of the remaining cases cited in the series, no one ever filed a complaint with OPR. Nonetheless, OPR will now review those cases. To top it off, in a number of instances, federal judges - not the Justice Department - found there was no wrongdoing.

Contrary to what the series implies, OPR is doing its job. And to ensure that it can oversee attorney conduct effectively, the attorney general has nearly quadrupled the size of the office in the last six years. In 1996 alone, it investigated more than 120 matters involving alleged prosecutorial misconduct, and substantiated the allegations in 15. Discipline has been taken in most of those cases.

More importantly, however, the isolated instances cited in the series fail to support the series' central thesis - that federal prosecutors and agents routinely violate the law without consequence. Although your reporter spent more than two years researching the series, he discusses fewer than 70 cases dating back more than 13 years.

Readers might be interested to know, by comparison, that during the same period federal prosecutors brought approximately 500,000 criminal cases against approximately 750,000 defendants. Even if the facts were as the reporter assumes in each of the nearly 70 cases - and they are not - one could argue that refutes rather than supports his thesis.

Indeed, the series seems to be most bothered not by prosecutors' misuse of law enforcement techniques, such as sting operations, the use of informants, plea bargaining, and stiff sentences for federal crimes, but by the fact that such techniques have been approved by Congress and the Supreme Court. They are effective tools in the war on crime and are not unethical. Indeed, prosecutors would be remiss not to use them in appropriate cases, in order to protect the public.

Federal prosecutors work around the clock putting criminals behind bars. Their work has helped reduce the national crime rate for more than six years in a row. And they are among the most respected and trusted lawyers in the nation.

It is indeed offensive when even one prosecutor engages in misconduct, but to suggest that such misconduct is characteristic of all prosecutors is offensive as well.

Editors' note: The Justice Department was repeatedly given the opportunity to express its views on these and other cases before and during publication of the series. In every case cited here, the department refused.