DOJ Official To Defense Bar: Stop Playing Games With Ethics

From time to time, the Justice Department's Lanny Breuer takes on the criminal defense bar, chiding defenders who use prosecution mistakes to bolster attacks on ethics.

Breuer, the assistant attorney general for DOJ's Criminal Division, today took his latest shot at members of the defense community in a speech in Sun Valley, Idaho, at the National District Attorneys Association summer conference.

His speech focused in large part on the department’s effort to combat violent crime, including cartel-related drug violence on the Southwest border. At the end of the speech, according to prepared remarks, Breuer turned to prosecutors and ethics.

Breuer, who began his legal career in the Manhattan District Attorney’s Office, touted the effort the department has made to ensure all prosecutors play by the rules—especially when it comes to disclosure obligations.

In the aftermath of the collapse of the Ted Stevens public corruption case in Washington, DOJ said it stepped up training and provided more guidance to its lawyers on gathering and reviewing discoverable information. Breuer said today the department is a “better place” now than it was two years ago.

Some attorneys in the defense bar, Breuer said today, are too eager to call every government mistake an example of prosecutorial misconduct. Breuer did not identify cases and he did not name names.

“Certain defense lawyers nevertheless continue to want to try and turn honest mistakes into instances of misconduct,” Breuer said. “This kind of gamesmanship is unfortunate."

Breuer said the department’s steps to reduce prosecutorial error “go further than what the Supreme Court requires. And they go well beyond what any prior Administration has done. That’s a fact. Do we need to remain vigilant? Absolutely.”

He said DOJ will not shy from taking hard cases “or otherwise shrink from our obligation to investigate and prosecute criminal activity without fear or favor, because of the possibility that an opportunistic defense lawyer will try and make hay out of an honest mistake."

And then Breuer repeated a line that Attorney General Eric Holder Jr. has trumpeted in fending off critics: “Our job is not just to win cases, but also to do justice in every case.”

“I think prosecutors are more aware of their ethical obligations today than they may ever have been—and, as far as I’m concerned, that’s a good thing,” Breuer said.

The remarks come days after the perjury prosecution of Roger Clemens fell apart in Washington federal district court over the government’s presentation of inadmissible evidence. Prosecutors, according to published reports, said the government inadvertently ran afoul of court orders.

Breuer did not bring up the Clemens case, which is being prosecuted by the U.S. Attorney’s Office for the District of Columbia. Breuer was a Covington & Burling partner in early 2008 when he represented Clemens, with Houston’s Russell Hardin Jr., during the former ballplayer’s appearance in front of a House of Representatives committee.

Comments

[Joe]

Aren't defense attorneys doing their job in that instance? They're trying to win for their clients. If the defense fits, why not wear it?

[Darren M. Meade]

Mr. Breur:

Seems to forget that it is the DOJ who continually makes sealed plea deals with convicted felons in exchange for remaining free on 'supervised released'.

These same felons go onto create new criminal enterprises that the DOJ refuses to investigate, because the 'supervised released' felon is needed to continue to testify against co-conspirators.

That being said, how is that not misconduct once the defense attorneys become aware that the key witness against their client is continuing to create new criminals enterprises and victims while on release?

[Mary]

Along with not bringing up the Clemens case, how about not bringing up the Drake and Sterling cases and a guy named Welch? Or pretty much any of the GITMO cases. Or the rather substantive "Errata" filing in the Stevens v. US case, etc.

For that matter, in the end, a huge chunk of it all comes down to what kind of integrity can anyone attach to a Department that has offered itself up for the better part of a decade now as nothing more than a vehicle for protecting and praising Executive branch "authorized" torture and preventing people who were sold to the US or snatched under name confusion etc. to ever be able to have any kind of justice.

The problem is a redefinition of prosecutorial error to exclude any actions that were helpful to running out statutes of limitations and covering up for executive branch and DOJ authorized violence against the helpless and the disappeared.

[Jim Coleman]

I think the quote should be, "not to win cases, but to do justice." And he should deliver the message to a gathering of defense lawyers, if he thinks their condcut is the problem. Making the remarks to an audience of prosecutors suggests the remarks are intended to make the prosecutors feel better about themselves, rather than to change the behavior about which he is complaining.