ABA compares DOJ Disciplinary Agency to a Roach Motel

As the DOJ’s disciplinary agency all but disappears, judges take matters into their own hands

Source: ABA Journal
July 2009 Issue
By John Gibeau

The government’s evidence linking reputed mob figures Vincent “the Animal” Ferrara and Pasquale “Patsy” Barone to a 1985 murder was pretty thin—an accomplice who escaped prosecution in exchange for testimony against the pair.

But a little over a year after the 1990 racketeering indictments of Ferrara, Barone and six other members of New England’s Patriarca crime family, a federal prosecutor in Boston learned his putative star witness had recanted.

Yet the prosecutor never told defense about the recantation, which he and a detective recorded in writing. Indeed, the defendants didn’t learn of the memos until 2003, when the detective spilled the beans at a hearing on habeas corpus petitions they filed seeking their release from long prison sentences.

Ultimately both went free, Barone in 2003 from a life sentence and Fer rara in ’05 from a 22-year term. Chief U.S. District Judge Mark L. Wolf, who had imposed both sentences, was forced to cut them short.

The prosecutor, Assistant U.S. Attorney Jeffrey Auerhahn, was investigated by Massachusetts state bar authorities. Wolf dropped a dime on him after learning that Auerhahn’s boss had simply reprimanded him be hind closed doors. That just wasn’t good enough for Wolf, considering he had to release two defendants re garded as especially dangerous. Auerhahn still works at the U.S. attor ney’s office in Boston, pros ecuting terrorism cases.

But, going where few judges would, Wolf also penned an extraordi nary series of letters—first to Attor ney General Alberto R. Gonzales and then to his successor, Michael B. Mukasey—stating his case for stiffer punishment and voicing his frustration with the Justice Department’s secretive Office of Professional Re spon sibility, which is supposed to investigate complaints of mis con duct by prosecutors and law enforcement officials who work for the department.

“The department’s performance in the Auerhahn matter raises serious questions about whether judges should continue to rely upon the department to investigate and sanction misconduct by federal prosecutors,” Wolf wrote in a January 2008 letter to Mukasey.

Wolf, appointed by President Ronald Reagan in 1985, warned Mukasey that more jurists would begin punishing prosecutors behaving badly if the OPR didn’t.

“I anticipate this will become much more common unless the department’s performance in disciplinary matters improves significantly,” the judge cautioned.

Wolf’s stinging rebuke came not only from a veteran jurist, but from someone who as a young prosecutor helped set in motion the department’s disciplinary machinery in the aftermath of the Watergate scandal.

“As one who took pride in assisting Attorney General Edward Levi in establishing OPR more than 30 years ago,” Wolf told Mukasey, “I sadly doubt it is now capable of serving its intended purpose.”

Critics historically have regarded the OPR as inept at policing its own. Wolf’s exchanges with the attorney general also come amid calls for more transparency.

“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.”

The Justice Department established the OPR in December 1975 to investigate allegations of pro fes sional misconduct made against DOJ at torneys and, under certain circumstances, law enforcement personnel, including agents of the Fed eral Bureau of Investigation and the Drug Enforcement Administration.

At the DOJ’s request, the section council deferred action in April on a resolution calling on Justice to disclose OPR findings in which it has documented intentional or otherwise serious misconduct. The move gave Justice more time to determine the extent to which a new Free dom of Infor ma tion Act policy presuming disclosure applies to the OPR.

The ABA had wanted the OPR to return to a Clinton-era policy favoring release when probes found inten tion al or serious misconduct, while weigh ing concerns for personal privacy and ongoing investigations.

Under the Bush administration, probes of misconduct often went undisclosed because of the poten tial for personal embarrassment. Upon taking office, President Barack Obama admonished all federal agencies that such personal or political considerations shouldn’t weigh against the public interest. Probes should not be withheld just because they might cause discomfort.

“These people should be embarrassed,” Green says.

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