No Comment — July 9, 2009, 3:07 pm

The Justice Department Roach Motel

The current issue of the ABA Journal takes a close look at one of the Justice Department’s more embarrassing cesspools, the Office of Professional Responsibility (OPR). We’ve looked at OPR at this site several times before. In theory, OPR exists to uphold the Department’s ethical standards. In fact, OPR seems to have a double function. First, by engaging in infantile games of turf warfare, it effectively blocks the DOJ’s Inspector General from doing his job. Second, when purporting to conduct investigations of wrongdoing, it proceeds at a glacial place, rarely succeeds in uncovering any facts, and, even when it does, usually issues a soft tut-tut, almost never administering any serious disciplinary measures. The DOJ consistently holds its own lawyers to a far lower standard than it holds others. In effect, OPR has become a whitewash organ for DOJ that specializes in whistleblower intimidation and shoring up U.S. attorneys engaged in highly abusive, and sometimes criminal, practices.

“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.”

But as I noted in a recent article for the American Lawyer entitled “Holder’s Headache,” federal judges across the country are telling the new Attorney General, Eric Holder, that they want to see a clean break with the sweep-it-under-the-carpet ways of his predecessors. And increasingly, the judges have prudently concluded that the Justice Department lacks the political will to deal with misbehaving prosecutors on its own. That helps explain Judge Emmett Sullivan’s appointment of a special prosecutor to investigate the leadership of the Justice Department’s Public Integrity Section, and it explains why a number of other judges are now pondering similar moves. The judges are increasingly taking matters into their own hands.

The ABA Journal article recounts a case of Brady Act violations in a high-profile homicide prosecution before Judge Mark L. Wolf in Massachusetts. The convictions were overtured, and in October 2003, the case was referred to OPR for investigation. More than three years later,

Wolf had heard nothing of the OPR investigation [U.S. Attorney] Sullivan promised. So where was it? Wolf asked then-attorney general Gonzales in a Dec. 8 letter. “I made all the documents and information in the Ferrara and Barone cases available to OPR several years ago,” Wolf complained. “No information on the status or any results of the OPR investigation has been provided to me.” What the judge didn’t know was that the OPR already had opened and closed its investigation of [the prosecutor's misconduct] months before Wolf’s inquiry. And in a Jan. 23, 2007, letter, David Margolis, an associate deputy attorney general, told him so.

“For your information, the OPR report of investigation concluded that AUSA Auerhahn engaged in professional misconduct and exercised poor judgment in connection with the Barone and Ferrara cases, and disciplinary action was taken against him,” Margolis told Wolf. Though Margolis offered no details at the time, Wolf eventually learned that the OPR had reduced the severity of the accusation—and consequently the range of penalties—by finding his conduct reckless instead of intentional.

Note the key role was played here by David Margolis, who as associate deputy attorney general is the senior-most career employee of the Department, the same man who played key, repeated roles in whitewashing misconduct allegations coming out of the Siegelman case in Alabama and who issued an utterly implausible defense of the conduct of the U.S. Attorney in the case (see “Prosecutorial Ethics Lite.”) Here Margolis is attempting to mislead Judge Wolf into thinking that serious disciplinary measures had been taken. In fact, as usual, the matter was swept under the carpet. Margolis was also deeply enmeshed in the U.S. Attorneys scandal, where one poignant scene has him consoling a sobbing Monica Goodling. Another key figure in the story is H. Marshall Jarrett, who headed the OPR at the time, and who defends his conduct vigorously. “We investigated it thoroughly and wrote a report, and I stand by that report,” he tells the ABA Journal.

After the complaints began to flow, Jarrett was removed from his position running OPR by Eric Holder, whom he counts a personal friend. He was reassigned to run the Executive Office of U.S. Attorneys, in a move that could easily be portrayed as a promotion. And that position also connects him to the decision, which I reported on Tuesday and the New York Times picked up on today, to fire the Siegelman whistleblower, Tamarah Grimes. The actual termination letter was communicated by Terry Derden, Jarrett’s senior deputy. The firing of a whistleblower for reasons obviously and directly connected to her highly credible disclosure of wrongdoing (like the Wolf case, involving multiple Brady violations) is extremely troubling, and Jarrett’s involvement adds to the appearance of a conscious cover-up implemented in violation of the No Fear Act. Jarrett also headed OPR investigations into a series of allegations of prosecutorial misconduct involving Leura Canary and Alice Martin, all of which appear to have resulted in no action. I say “investigations,” but after many inquiries, I find no evidence that any investigation ever occurred, in any of these cases. OPR remains the organ of phantom investigations. The roaches go in, but nothing ever comes out.

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