The Office of Professional Responsibility (OPR) under the auspices of the Justice Department published a long-awaited report in 2010 that found former Office of Legal Counsel attorneys John Yoo and Jay Bybee of engaging in professional misconduct by authoring two memorandums in 2002 and 2003 which justified the use of torture in the crackdown on suspected terrorists in the wake of the 9/11 attacks. The title of the OPR report is Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists. The report also concluded that both attorneys had failed to provide the Bush administration for which the torture memos had been written, with a thorough, candid, and objective legal analysis incumbent upon all lawyers working in the OLC.
It was recommended in the report that both Yoo and Bybee be referred to their respective state bar associations in order to face disciplinary actions against their licenses to practice law. Bybee was a member of the District of Columbia bar while Yoo was licensed in Pennsylvania at that time. However, neither man was ever referred for sanctions of any sort. Ironically, on the same day the Justice Department released the OPR’s report, a memo written by Associate Deputy Attorney General David Margolis was released that apparently absolved both Yoo and Bybee of any misconduct. David Margolis had been assigned to review adverse OPR findings entered against wayward Justice Department lawyers. In the memo , it was determined that the torture memos that approved of brutal tactics as waterboarding, were flawed, however they did not in the context of post-9/11 emergency cross the line into formal misconduct or bad faith in violation of international human rights.
Today John Yoo is a tenured professor at the University of California School of Law at Berkeley where he holds an endowed chair and teaches in the school’s program on public law and policy whereas Jay Bybee is a judge on the 9th U.S. Circuit Court of Appeals. Bybee was nominated to the bench by Bush in 2002 and his appointment was confirmed by the Senate in 2003, long before the torture memos were made public. According to the memo, Yoo and Bybee’s transgressions were merely isolated instances of misconduct, however, they weren’t as isolated as portrayed. Prosecutorial misconduct is not confined only to federal lawyers; on the contrary, prosecutorial misconduct is a rampant epidemic in almost the entire American legal system. Some observers have gone so far to say that prosecutorial misconduct across the country has reached epidemic proportions.
Generally, instances of prosecutorial misconduct are found on state level in in ordinary criminal cases. Such instances may include the withholding of exculpatory evidence and overcharging defendants to the willful destruction of evidence, perjury from government witnesses and pressuring defense witnesses. According to a study carried out recently, in some states instances of prosecutorial misconduct occur on average more than once a week. Even more stunning is the fact that almost none of the prosecutors were ever criminally charged for their misdeeds. The study did not take into account any misconduct committed in cases that plea out. As 97% of criminal cases are settled with a plea bargain, this study merely scraped the surface in regards to instances of prosecutorial misconduct.
Researchers and news outlets have reached similar conclusions regarding misconduct in other jurisdictions. Some of the prominent instances are mentioned below:
● USA Today focused on over 200 cases tried nationally in federal courts. In these cases appellate judges determined that prosecutorial conduct had taken place but only one Justice Department prosecutor had been temporarily disbarred.
● The Chicago Tribune examined over 10,000 cases from around the US where appellate courts had reversed convictions in 381 cases including 67 death penalty judgments. However, not a single state disciplinary agency publicly sanctioned a single government lawyer involved.
● Yale University published the results of a detailed investigation of the ethical rules and disciplinary practices of all 50 states. They were all found lacking in holding prosecutors accountable for misconduct.
In another ironic twist, prior to joining the Supreme Court, Justice Powell wrote a memo on behalf of the U.S. Chamber of Commerce where he urged the business community to become more proactive in its use of litigation to counteract the impact of groups like the NAACP and the ACLU. The Supreme Court prevented prosecutors from being held accountable yet again in a case dealing with civil damage actions against federal prosecutors. This case was brought by the New York-based Center for Constitutional Rights (CCR) on behalf of six men of Arab and South Asian descent who were arrested in the immediate aftermath of 9/11 and subsequently held and abused in a federal facility for up to six months before being deported. The CCR sought to hold the Attorney General and FBI Director at the time among other officials, liable for the plaintiffs’ extended detention and mistreatment.
In the ensuing lengthy litigation the Justice Department strived to have the complaint dismissed whereas the CCR was pursuing civil damages actions against government officials for Fourth Amendment violations. In a fractured 4-2 decision, the Supreme Court declined to accept the CCR’s standpoint citing that the conduct complained of took place during a time of national crisis. It is a fact that being a prosecutor is hard and pressurizing work even under the best of circumstances. Lawyers would decline any posts with the Justice Department or as a prosecutor if they could be potentially prosecuted and sanctioned for every discretionary decision they make. Thus it would be safe to say that certain protections are warranted. Without prosecutors there would be no Justice Department, therefore the aim should be to foster a system that encourages lawful prosecutorial behavior while punishing the worst instances of misconduct.
Although prosecutorial misconduct may never be eliminated altogether it is important to remember that no one is above the law. If you have been a victim of prosecutorial misconduct it is advisable that you seek the services of an experienced criminal defense attorney to protect your rights and freedom.
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