Prosecutor Misconduct In Two Recent High-Profile Cases:
Why It Happens, and How We Can Better Prevent It

Federal prosecutorial misconduct has turned two recent high profile cases -- one involving allegations of murder, the other involving allegations of a terrorist conspiracy -- upside down.

In each case, the jury came back with a conviction, or convictions. But in one case, the jury saw evidence it wasn't supposed to see -- because, according to the judge, the prosecutor slipped it into the evidence box. And in the other case, the jury was not shown evidence it was supposed to see -- because the prosecutors never turned it over. Yet in neither case has any prosecutor who was to blame been fired.

Obviously, actions like these severely undermine defendants' rights. They also shake public confidence in our criminal justice system. And they mire that system in costly retrials that never would have had to take place if prosecutors had shown the jury the evidence it was meant to see -- and only that evidence -- in the first place.

This misconduct raises an important question: How can we prevent it from happening the future? I will argue that prosecutors should be able to be penalized by the bar of any state in which they practice -- and that the Department of Justice's Office of Professional Responsibility should be reformed to come down harder on cases of blatant misconduct, such as these.

Then, just two weeks ago, Judge Lee ordered a new trial on the murder charge. Why? Because shocking evidence of prosecutorial misconduct had surfaced.

Jurors had reported that evidence that the court had ruled inadmissible -- a calendar allegedly obtained from the possessions of the deceased--had made its way into the jury room anyway. There, they told the judge, it had been "very influential."

After a hearing, Judge Lee concluded that the chief prosecutor in the case, Steven D. Mellin, had put the calendar in the evidence box that had gone to the jury. He also made plain that he believed Mellin's misconduct was intentional, or at least reckless -- not merely an innocent mistake.

Rather than offering abashed apologies, the prosecutors insisted there was no proof of prosecutorial misconduct. (Earlier, they had insisted that the judge had had no authority to investigate them in the first place.) Clearly, the prosecutors though they were above the law. Fortunately, Judge Lee held otherwise.

But the point is this: Mellin plainly thought that he, not Judge Lee, should control the case and the courtroom. Indeed, courtroom interchanges between the two were characterized by Mellin "talking back" to the Judge in a way that no defense attorney could ever get away with.

Mellin is said to have asked the Department of Justice's Office of Professional Responsibility (OPR) to investigate him -- apparently hoping that it will clear him. But as I will explain below, even if Mellin were clearer by OPR, that would still be no guarantee he was innocent of wrongdoing.

Last year, the well-known case involving an alleged Al Qaeda cell operating out of Detroit, Michigan went to trial. The prosecution's star witness was a jailhouse snitch. Defense attorneys claimed the witness had concocted a story about hearing defendants talk about their terrorist activity, in order to better his own position with respect to charges against him involving document fraud.

As is the norm now in "terrorism" trials, U.S. District Judge Gerald Rosen imposed a gag order on all attorneys--including prosecutors. As I discussed in an earlier column, Attorney General John Ashcroft twice violated that order by going public--during the trial--with statements designed to bolster the credibility of certain government witnesses.

At the end of trial, some defendants were found guilty, and some were acquitted. But the guilty verdicts were soon put into question. It emerged that prosecutors had failed to turn over a crucial piece of exculpatory evidence to the defense.

The evidence was a letter from a jailmate of the star witness, the snitch. The man said the snitch had been bragging that he was lying in order to better his position with the government. In other words, the inmate specifically corroborated the defense's theory that the witness was making up his story up to try to get out of his own legal troubles.

Why did the prosecutors not turn the letter over -- as they were obligated to do with any and all exculpatory evidence, under Brady v. Maryland? They said they thought that it wasn't "important" -- given that all the other evidence, in their view, overwhelmingly pointed to guilt. In short, they appointed themselves judge and jury over the defendants' fate.

Furious once again, Judge Rosen has been conducting hearings and reading briefs on what he should do next. The prosecutors have been removed from the case, and the Justice Department is said to be investigating the matter. But the government's position, unbelievably, continues to be that the verdict -- however tainted by the withheld evidence -- should stand.

Unlike defense attorneys, who must be licensed to practice law everywhere they practice, federal prosecutors only have to be licensed to practice law in one state. With a single bar admission, they can practice in any federal court in the land. The result is that only one state bar can investigate them -- and often, that state bar has no interest in doing so, for their alleged misconduct occurs in another state.

In the Lentz case, the Virginia State Bar reportedly "referred" Mellin to his licensing state of Texas, for "appropriate" action. But Texas's standards of practice are famously lax, and pro-prosecution. Moreover, it is Virginia that has the interest in preventing misconduct here: A federal judge in a Virginia courthouse has held that Mellin committed misconduct.

What about federal disciplinary options when prosecutors go astray? Sadly, they are also weak.

In 2001, the General Accounting Office wrote a stinging report on the Justice Department's Office of Professional Responsibility. It found that OPR rarely held prosecutors accountable for misconduct. And if OPR turned over a case over to the state that licensed an errant prosecutor, OPR rarely followed up.

Did OPR improve itself? It's hard to tell. OPR is supposed to file an annual report, but the last one I found on its website was for 2001. It is filled with self-congratulatory reports of how well it is doing its job -- but it is also lacking in specifics. We should all watch closely to see if the Mellin and the Detroit cell prosecutors -- all of whom plainly committed misconduct -- are disciplined by OPR or not. If not, that in itself will be a strong sign that OPR is still not doing its job.

Judge Lee and Judge Rosen also have an option if they want to discipline the prosecutors who committed this misconduct -- and in these egregious cases, they should seriously consider availing themselves of it. The option is to hold those responsible in contempt of court -- and to impose upon them fines, or even temporary imprisonment.

Too harsh? If you think so, consider that these prosecutors were willing to send people to jail for far longer periods, based on evidence that was, in one case, tainted, and in the other, grossly incomplete. Would it really be so unfair for them to have a small taste of the confinement they might have subjected the defendants to for decades or, in the Lenz case, for life?