The entirety of Fine’s testimony is instructive, the cited portion is taken from pages 12-16.
Of 869 complaints, less than 10% were even deemed worthy of an investigation. Not bad, right? Even if you’re reported, the odds are clearly in your favor.
Perhaps one will say that crank litigants make a lot of frivolous complaints. That would be wrong. Sixty-nine percent of investigated complaints were initiated by judges. Private lawyers and private litigants amounted for less than 3% of complaints leading to investigation.
Of the 84 cases worthy of investigation (58 of which were cases where a judge had already found prosecutorial misconduct), in only 18 cases were prosecutors disciplined. According to OPR, there is a crisis within the federal judiciary.
The numbers don’t add up. DOJ’s Office of Professional Responsibility investigated less than 10% of all reported cases of prosecutorial misconduct. While federal judges found prosecutorial misconduct in 58 cases, DOJ only found prosecutorial misconduct in 18 of those 58 cases. It’s pretty clear that the Department of Justice cannot be trusted to investigate itself.
Self-policing is a failure. In 2009 alone, there have been nearly a dozen high-profile cases of prosecutorial misconduct. If OPR continues its mission, those prosecutors can sleep easy. The odds are clearly on their side.
The just recently released 2007 OPR Annual Report is no better than that of 2006, and arguably even more bleak.
“The [Justice] 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,” wrote Wolf, who last July, after expressing frustration with his punishment, took the unusual step of asking the Massachusetts Board of Bar Overseers to launch disciplinary proceedings against Auerhahn.
Mistrusting the OPR, Sullivan took things a step further. He dismissed the case on April 7 and appointed a special prosecutor to investigate six of the lawyers from the department’s Public Integrity Section involved with the trial.
Defense attorney Sullivan told the court he’d complained three times to Mukasey about the conduct and nev­er received so much as an acknowledgment. “Shocking, but not surprising,” Judge Sullivan responded.
Under the Bush administration, probes of misconduct often went undisclosed because of the potential 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.
As amply demonstrated by the whitewash at the hands of the OPR and David Margolis, things have not particularly improved in the least under the hope and change of Barack Obama and Eric Holder. The Roach Motel is an absolute must read, and the OPR is still an embarrassment.
Time after time the reports of frustration with the OPR process wind up with one name involved: David Margolis. Margolis is not even part of the OPR, yet controls every significant report emanating from the OPR and, by his own admission, has been the sole gatekeeper for any findings of misconduct “since the 1990s”. If Margolis has ever found misconduct by higher level officials in the department, I cannot find it. Of course that is not surprising in light of the secrecy and lack of transparency testified to by Glen Fine. Secrecy and opaqueness proudly wielded and ordered at the command of – you guessed it – David Margolis, who is concerned that his department’s attorneys not be “humiliated”. Public disclosure and trust is such a quaint thing compared to protecting your own it seems for Mr. Margolis.
This is the one and same David Margolis who, in the rare and previously unheard of instance where findings of professional misconduct by DOJ leaders and/or elite attorneys such as the OLC crew of Yoo and Bybee actually were made by the OPR, took it upon himself to personally and unilaterally gut the findings and protect his own.
Further views into the professional soul of David Margolis, or lack thereof, can be found from Jeff Kaye, Scott Horton and more Scott Horton.
So, the in-house “Yoda”, who considers himself the “department’s cleaner” is the guy the DOJ put in charge of protecting the American public from the virulent malfeasance of actors such as John Yoo and Jay Bybee, not to mention all the other cases that courts and citizens have been able to get no action on over the years. It seems David Margolis has his own institutional interests that present an appearance of conflict with his duties to protect the public from malevolent lawyering by DOJ attorneys, especially high ranking ones. Pretty much explains everything.
As I said at the outset, this is merely the first in a series of posts discussing the many and severe conflict issues surrounding the OPR Torture Report. From this general introduction, over the next few days, I will have more as will both Marcy and Mary.