Eugene Volokh continues to serialize the Georgetown law review article by Ninth Circuit Judge Alex Kozinski, with the latest addressing reforms to curb prosecutorial misconduct. You know, the stuff that never happens, except when it does.
Most of Judge Kozinski’s recommendations are well known, like open file discovery and double blind sequential line-ups. All good recommendations, though with caveats to address how things that look shiny on the surface can still have festering boils beneath, but Judge Kozinski’s support for these long time proposals doesn’t hurt.
But then, proposal 8 of his listicle is a curious one:
8. Establish independent Prosecutorial Integrity Units. In my experience, the U.S. Justice Department’s Office of Professional Responsibility (OPR) seems to view its mission as cleaning up the reputation of prosecutors who have gotten themselves into trouble. In United States v. Kojayan, we found that Assistant United States Attorney Jeffrey Sinek had misled the district court and the jury. The district judge, who had trusted the AUSA, was so taken aback with the revelation that he barred further re-prosecution of the defendants as a sanction for the government’s misconduct.
OPR investigated and gave the AUSA a clean bill of health. And no Justice Department lawyer has yet been sanctioned for the Stevens prosecution despite the clear evidence of willful misconduct. Prosecutors need to know that someone is watching over their shoulders — someone who doesn’t share their values and eat lunch in the same cafeteria. Move OPR to the Department of Agriculture, and institute similar independent offices in the 50 states.
The purpose of the Department of Justice’s Office of Professional Responsibility is to oversee the agency to assure that it follows legal and agency procedures, engages in lawful and ethical practices, and to investigate and address instances where the agency failed.
As Judge Kozinski points out, it hasn’t quite lived up to its promise. On the other hand, Judge Kopf viewed the threat of an OPR investigation as sufficient, maybe even more than sufficient, to cow rogue prosecutors into line. Clearly, there is a disturbance in the force.
Based solely upon the numbers of federal prosecutors fired, reprimanded, disbarred and publicly flogged for Brady violations, with no personal bias involved whatsoever, Judge Kozinski wins, hands down. But there really wasn’t any doubt of that, was there?
Yet, his assertion, that OPR exists to manage reputation management rather than professional responsibility is a strong condemnation. It’s one thing to contend that OPR sucks at its job, but it’s another to argue that OPR not only doesn’t fulfill the function for which it exists, but does just the opposite, sanitizes dirty prosecutors so that their impropriety vanishes from public sight. No wonder Judge Kopf doesn’t see a lot wrong with prosecutors. OPR is on the job.
To fix this problem, Judge Kozinski proposes removing the watchdog from its leash at DoJ and making the department independent.
Prosecutors need to know that someone is watching over their shoulders — someone who doesn’t share their values and eat lunch in the same cafeteria. Move OPR to the Department of Agriculture, and institute similar independent offices in the 50 states.
First, independent and move to the Department of Agriculture aren’t the same things. If an office was created at Ag, the staff would have to buy cheaper suits, get bad haircuts and read the Earl Butz jokebook. They would never find competent personnel that way.
But is co-optation by one finger of government any less independent than another? The DoJ Office of Inspector General is instructive. Mike Horowitz, the IG, is a bulldog when it comes to integrity. A generally unpleasant and humorless guy, so he’s perfect for the job. Sure, he’s under the auspices of the DoJ, but that hasn’t prevented him from being that incredibly annoying fly that won’t stop buzzing around the corpse of integrity.
But he’s inside. He’s one of them. He’s got the authority. And he’s treated like dirt.
The problem isn’t that Horowitz and his crew eat lunch in the same cafeteria as the rest of them, but that they just ignore him and refuse to comply with his investigations. When someone is independent, does their job, he gets stonewalled.
What are the chances an independent OPR (or whatever new name they might give it) with its office at Ag is going to be shown respect? The problem isn’t that prosecutors need to know someone is looking over their shoulders, though they assuredly do, but that the watchers have the juice to change things, to make Main Justice ashamed of the Thornburgh Memo, to reprimand, name and shame and fire prosecutors who throw darts at Justice Jackson’s framed address.
While physical proximity has a strong tendency to undermine the “arm’s length” willingness to reach hard conclusions about misconduct, as it’s hard to call the good guy you hang out with at lunch a dishonorable scumbag, distance alone isn’t enough to change the culture of reputation management at DoJ or gives the office the power to break through the wall of self-protection.
Government reformers have tried over and over to find a cure to metastases below the surface of power, and each has fallen short. If only there was another, truly independent, arm of government that felt no affinity for its co-equal branches, was protected by life tenure from retaliation for saying mean things about what others were doing, and had the power to actually do something about it?
We could give that arm of government a name, perhaps even a mode of attire, to distinguish it from the executive branch’s minions. It could be given special seats, higher up than others, to distinguish its authority. Maybe there already is such an independent force for good, if only it chooses to flex its muscles, use its power to effect change. Would that cut it, Judge Kozinski?