Attorney General Promises Judges a New Day at DOJ

Joe Palazzolo

The National Law Journal

In his first confab with the nation's chief federal district judges, Attorney General Eric Holder Jr. pledged to raise the bar of professionalism in the U.S. Department of Justice and acknowledged that the current procedure for reviewing complaints against attorneys was too slow and opaque.

Nine chief judges described the April 21 meeting on the condition of anonymity because it was closed to the public. Holder's words held the promise of reform for the approximately 90 judges who attended the annual meeting at the Thurgood Marshall Federal Judiciary Building in Washington as discovery abuses and other prosecutorial misconduct, new and old, have come under increased scrutiny in the aftermath of the Ted Stevens case.

Holder dropped the case after finding that prosecutors withheld material that could have aided in the Alaska senator's defense. A federal judge has appointed an outside counsel to investigate the Stevens prosecutors for possible criminal contempt, joining a group of others in the judiciary who have questioned the department's ability to police its own.

At the meeting, Holder said improvements to the Office of Professional Responsibility were imminent. "The attorney general said he was going to take [OPR] complaints very seriously and that the whole process has to be more transparent and timely resolved," said one chief judge.

Holder invited the judges to contact him directly about problem prosecutors and other areas of concern. He even gave the crowd his phone number, a symbolic gesture that resonated with many judges who say the department's emphasis on national security, while justified, has put distance between the two branches in recent years. The judges said Holder won high marks for his candor and attentiveness. (He received two standing ovations -- one more than any visiting attorney general in recent memory, the judges said.)

Holder answered questions for nearly and hour, on topics ranging from sentencing law to Guantanamo Bay, Cuba.

In his remarks, Holder emphasized, as he has publicly, that department lawyers would receive additional training to reinforce their understanding of rules that govern discovery in criminal and civil cases. Justice Department spokeswoman Tracy Schmaler said Holder's comments about improving the OPR were in keeping with his overall effort to hoist professional standards.

The ethics office has not released a public report on its activities since 2005, and Congress and a number of federal judges have dismissed it as a vacuum. Among the OPR's toughest critics, Chief Judge Mark Wolf of the U.S. District Court for the District of Massachusetts was the first to take up Holder on his offer to contact him directly. In a letter to Holder last week, Wolf urged the attorney general to review a series of prosecutorial misconduct claims stemming from a high-profile mafia case and another matter involving the mishandling of informants in the prosecution of an FBI agent. Wolf, who helped establish the OPR in 1979, declined to comment. Wolf's letter was attached to an order in the mafia case, in effect memorializing Holder's remarks on the public record.

Holder touted the OPR's new chief, Mary Patrice Brown, a 20-year veteran of the U.S. Attorney's Office for the District of Columbia. He said she would bring energy and focus to an office that is sodden with high-profile work, according to the judges. Holder appointed Brown the day after Judge Emmet G. Sullivan dismissed the Stevens indictment.

Brown is overseeing the investigation of the Stevens prosecution, and she's also inherited a five-year-old probe into whether Justice Department lawyers violated professional standards in authoring sweeping legal opinions related to the president's wartime powers and the use of harsh interrogation techniques on suspected terrorists.

"She sounds like she's really a ball of fire," said one judge, adding that Holder assured judges OPR complaints would receive a "thorough investigation and swift resolution."

Holder also said his department would take steps to eliminate the vast disparities in federal sentencing for possession of crack versus powdered cocaine and expressed his commitment to look into alternative courts to deal with drug-related offenses, the judges said. Last week, Holder's new Criminal Division chief, Lanny Breuer, told a congressional panel that the department would support legislation to put crack and powder cocaine offenses on equal footing.

Several judges advocated for uniformity in sentencing and charging policies. One judge asked whether the Justice Department would, in some cases, continue stacking gun charges, which carry consecutive mandatory minimums sentences that can lead to lengthy sentences. Holder said he and his staff were reviewing the practice.

Another judge pressed Holder about inconsistencies among the U.S. attorneys offices in crediting defendants who provide substantial assistance to the government. In some jurisdictions, substantial assistance, such as wearing a wiretap, can earn a defendant a 50 percent sentence reduction, while in others, it might earn them only a 10 percent reduction.

Holder said the these issues were under review. He has tapped Deputy Attorney General David Ogden to chair a working group to examine federal sentencing and corrections policy and possibly make recommendations to Congress and the president.

Holder also fielded questions about the closure of the detention facility at Guantanamo Bay. He said the department was committed to fulfilling President Barack Obama's promise to close the prison in a year. As he has in the past, the attorney general said that some of the 241 detainees would be tried criminally but that the review was ongoing. Holder spent last week in Europe, meeting with government officials to ask for their help resettling some of the detainees.