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.