Wednesday, January 30, 2013

The Roach Motel

     The Office of Professional Responsibility (OPR) is a department that is part of the Department of Justice (DOJ), and has the purpose of investigating and ousting federal prosecutors who do a bad job.  It was created in the wake of Watergate, when Americans were forced to admit that their leaders could be corrupt and the justice department might even participate in the corruption.  The OPR is a branch of the DOJ commissioned with policing itself.  Some people think it's doing a terrible job.
     Fordham University law professor Bruce A. Green used to be a federal prosecutor and has c-chaired the American Business Association's ethics commitee.
     "I used to call [the OPR] the roach motel of the justice department," he said.  "Cases check in but they never check out."
     The OPR is, in theory, a place where people like you and me might register complaints such as breaches of ethics, misconduct, or criminal acts by federal attorneys.  (The Office of Inspector General is a parallel bureau where complaints about non-attorney breaches are supposed to be investigated.)  If I believed, for instance, that I had been mistreated by the federal prosecutors in my so-called case, I could file a complaint with the OPR.
     Some portion of OPR complaints are registered by defendants like me, although most come from judges, state agencies, private attorneys, government officials, media reports and congressional representatives.  The usual procedure is for the OPR to notify the federal attorney who has been reported about the complaint, and request a response in writing.  After an investigation, the OPR is supposed to give both the complainant and the attorney a decision.  
     But it seems that OPR investigations may take even longer than investigations like the one of my medical clinic.  OPR cases sit in limbo for years.  Therefore, even if I thought I had a case to report (for example, that federal prosecutors raided and wrecked my clinic without making sure they had sufficient cause), it might take forever to get a response from the OPR.  And disciplinary action against the prosecutors, if deserved, would be unlikely to happen, ever.
     I'm thinking about filing a complaint with the OPR, and seeing which "case" moves faster:  the prosecutors' case against me, or my complaint against them?  It would be like two gopher tortoises in my back meadow:  how fast can they rest?  Tortoises like to sit around.  So, apparently, do federal prosecutors and OPR investigators.
     Sometimes I wonder what actually happens in the office of the OPR?  Or in the that of my prosecutors?  Do they have bricks-and-mortar buildings?  Do they dress up in semi-formal attire every day, and drive to work?  Do they walk into their offices and say, "I don't feel like doing anything today.  Let's order out for pizza--"?  Or are there phone calls and lots of paper shuffling, and secretaries who give the impression of being busy, a la that series, "The Office"?  Do they put in nine-to-five days, and give all the taxpayers a day's work for a day's pay?  Is anybody supervising them?
     I think you and I are supposed to be supervising them.  Right?  After all, we pay their salaries.
     It's not clear whether the OPR is even required to tell the public about cases it's investigating.  Investigations of federal prosecutors by the OPR may not have to comply with the Freedom of Information Act, not even when those prosecutors are found guilty of unethical, wasteful, or criminal behavior, at taxpayers' expense.
    So, apparently it's okay for the federal government's prosecutors and agents to notify the media in advance of a raid on my clinic, in order to publicize it to the world--without having to reveal one speck of evidence to support their actions...but it's not okay for the justice department to reveal its findings, even after federal prosecutors may have been found guilty of misconduct or blatant crimes.   During the Bush era a decision was made that such information shouldn't be made public because it might cause "embarrassment" to Department of Justice attorneys.  As far as I can tell, this decision still stands. 
     It's been more than six years since the OPR  reported how many complaints it receives (there were 869 in 2006) and how many were deemed worthy of follow-up (230 in 2006).   Federal lawyers are rarely disciplined for misconduct--which means, their very misconduct is, in effect, sanctioned.
     Why shouldn't federal prosecutors do whatever they want--running over citizens, hiding evidence, fabricating stories, pretending to be busy with ongoing investigations (for example, of me), while important and sometimes life-saving records (for example, the medical charts belonging my 3,000 patients) taken long ago (June 16, 2011) lie around gathering dust in back rooms (like the one in the FBI's Tallahassee office, where two of my employees were permitted to go, only once, to copy a few records, and told me it looked as though the charts hadn't been touched, a year after the raid)--why shouldn't federal prosecutors act, or not act, willy-nilly, like this?  One study on cheating showed that 80% of people will cheat, at least a little, if they know they can get away with it.  And every business owner understands that when the cat's away, the mice play.
     According to a report, "The Roach Motel," (ABA Journal, July 1, 2009) from which some of this post's information was taken, federal prosecutors in high-profile cases have gotten away with hiding key evidence, altering reports, failing to disclose exculpatory facts, and intentionally misconstruing evidence in order to put behind bars people who don't belong behind bars.  If this is what they can do when everyone is watching, imagine what goes on in low-profile cases?
     With Eric Holder at the helm, what else could we expect?
     I don't think I'll file that OPR complaint just yet.  It's likely to be a waste of everyone's time. 

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