[M]ost prosecutors . . . work long hours with little glory trying to bring about a just result. The problem is at the margins — but the margins are growing. Increasingly, the high public profile of a target or the attention- grabbing nature of the alleged wrongdoing may have more to do with a matter’s “prosecutorial merit” than the strength of the evidence or the seriousness of the crime. * * * The problem has become endemic, and the solution will need to go beyond ad hoc displays of judicial exasperation and oversight. * * * What has been lost is a sense of proportionality and identification of pri- orities. 3
“T he grand jury process is largely devoid of legal
Reinforcing this observation are the many recent opin- ions of respected jurists sharply castigating federal prosecuto- rial misconduct. For example, as Seventh Circuit U.S. Court of Appeals Judge Richard Posner has so aptly put it: “[t]he increase in the number of federal prosecutors in recent years has brought with it problems of quality control.” Judge Posner went on to describe and condemn a campaign of harassment waged against a respected criminal defense attorney who was thereby forced to abandon his representation of a client in order to defend himself: “On meager grounds, the U.S. Attorney’s office launched a sting operation against the lawyer for an individual under criminal investigation by the same office. Although the operation produced zero evidence or leads to evi- dence of illegal conduct, it dragged on for two years.” 4 Likewise, in a recent case in which an assistant U.S. attorney concealed evidence and then lied about it, Ninth Circuit U.S. Court of Appeals Judge Alex Kozinski wrote: “[t]roubled as we are by the prosecutor’s conduct, we’re more troubled still by the lack of supervision and control exercised by those above him. . . . How can it be that a serious claim of prosecutorial misconduct remains unresolved — even unad- dressed — until oral argument in the Court of Appeals?” 5 Indeed, as far back as 1990, a congressional subcom-
rules. The prosecutor can present the evidence he or she wants to present in the manner he or she wants to present it. . . . * * * The result is a federal grand jury process virtually immune from judicial supervision. ”
mittee looking into the Justice Department’s internal controls asked the Department’s Office of Professional Responsibility (OPR) what disciplinary action it had taken in each of ten cases in which federal judges had made written findings of prosecutorial misconduct. After lengthy delay, the panel was finally informed by OPR that “no disciplinary action has been taken in any of the ten cases.”The subcommittee observed that “repeated findings of no misconduct, and the Department’s failure to explain its disagreements with findings of misconduct by the courts, raises serious questions regarding what [it] considers ‘prosecutorial misconduct.’. . .” 6
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