CREW citizens for responsibility and ethics in washington January 28, 2011 Honorable Darrell E. Issa Chairman House Committee on Oversight and Government Reform U.S. House of Representatives 2157 Rayburn House Office Building Washington, D.C. 20515 Honorable Lamar Smith Chairman House Judiciary Committee U.S. House of Representatives 2138 Rayburn House Office Building Washington, D.C. 20515 BY FAX: 202-225-3974 and 202-225-7680, Dear Chairman Issa and Chairman Smith: Citizens for Responsibility and Ethics in Washington (CREW) respectfully requests that your committees consider legislation to extend the jurisdiction and oversight authority of the inspector general (IG) at the Department of Justice (DOJ) 10 include DOJ’s attorneys. This step would place DOJ’s IG on a par with all other inspectors general in the federal government and address systemic problems at DOJ. Ina recent interview with the Legal Times, DOI Inspector General Glenn Fine relayed his disappointment at being unable to add oversight of DOS attorneys to his office’s responsibilities. Mr. Fine noted “{e]very other inspector general has unlimited jurisdiction over their agency, including its attorneys, except the Department of Justice’s inspector general.” Instead, DOJ has a separate office that investigates allegations of attorney misconduct, the Office of Professional Responsibility (OPR). DOJ’s handling of professional misconduct cases, however, has been plagued with problems and its effectiveness called into serious question. For example, USA Today conducted an investigation of federal prosecutor misconduct that revealed 201 cases since ' Mareia Coyle, Walking a Fine Line, Legal Times, January 24, 2011 (attached as Exhibit A). 1400 Eye Sret, LW, Suite 450, Washington, D.C. 20005 | 202.408.5565 phone | 202.588.5020 fax | vawlizensoretis.org —Honorable Darrell E. Issa Honorable Lamar Smith January 28, 2011 Page Two 1977 where federal courts found prosecutors had violated either laws or ethics rules.’ In many cases as a result of this misconduct, judges either overturned convictions or tossed out charges? Yet despite the seriousness of the prosecutorial misconduct, DOJ often took years to investigate and the prosecutors faced little risk of losing their jobs." DON’s efforts to investigate attorney misconduct are not only often ineffective, but are completely lacking in transparency. Inspector General Fine expressly contrasted this process with that of his office, which is both “independent and transparent.”* As a result of the secrecy that surrounds all aspects of OPR’s work, both Congress and the public are deprived of vital information about how DOJ's attorneys carry out their governmental responsibilities. This, information is of critical importance when DOJ attorneys are charged publicly with wrongdoing, as in the case of DOJ's high-profile but botched prosecution of former Senator Ted Stevens. Recently Attorney General Eric Holder announced the creation of the Professional ‘Misconduct Review Unit (PMRU) with responsibility for resolving disciplinary matters involving professional misconduct for employees of specified units, including the Executive Office for United States Attorneys and the Criminal Division. Intended to reduce delays and provide “consistent resolution of matters involving similarly situated employees,” the PMRU_ reports to the Deputy Attorney General.® It is unclear how the creation of an additional level of review will reduce delays or ensure consistency, but one thing is clear: the PMRU will suffer from the same lack of independence and transparency as does OPR. That is why DOJ’s inspector general should be able, in Mr. Fine’s words, to at least have “the exercise of first refusal” over investigating attomey misconduct.” ? See Brad Heath and Kevin McCoy, Prosecutor Misconduct Lets Convicted Off Easy: In Worst Cases, the Guilty Go Free, USA Today, December 28, 2010 (attached as Exhibit B). 3d. “Id. see also Brad Heath and Kevin MeCoy, Justice Dept, Unit to Punish Lapses: Discipline Was Slow Against Prosecutors, US4 Today, January 19, 2011 (attached as Exhibit C), * Coyle, Legal Times, Jan. 24, 2011 * See Memorandum from the Attomey General regarding Creation of the Professional Misconduct Review Unit, January 14, 2011 (attached as Exhibit D). ” Coyle, Legal Times, Jan. 24, 2011.Honorable Darrell E. Issa Honorable Lamar Smith January 28, 2011 Page Three ‘We understand the House Committee on Oversight is considering expanding the subpoena authority of inspectors general. In fact, last year, former House Oversight Committee Chairman Edolphus Towns and then Ranking Member Issa cosponsored H.R. 5815, which included provisions to do just that. Reintroduction and consideration of that bill or similar legislation this year presents an ideal opportunity to also expand the jurisdiction of DOJ’s IG to include attomeys, CREW strongly urges Congress to provide the DOJ IG with oversight of the department’s attorneys, which would bring a level of accountability and transparency that to date has been lacking in DOJ’s efforts to address and resolve professional misconduct. Thank you for your attention to this important matter. felanté Sloan Executive Director Enclosures cc: Honorable Elijah Cummings Honorable John ConyersEXHIBIT A10f3 hutp:/w ww law conyjsp/nlj/legaltimes/Pub ArticleFriendlyLT jsp?id. THE NATIONAL LAW JOURNAL Select ‘Print’ in your browser menu to print this dacument. Copyright 2011. ALM Media Properties, LLC. All rights reserved. National Law Journal Online Page printed from: http://www.nlj.com Back to Article Fine's tenure marked by post-9/11 turmoil Marcia Coyle January 24, 2011 Glenn Fine's office is starting to show the telltale signs of an imminent departure. No boxes litter the office floor yet, but the walls and bookcases have a few vacant spaces where mementos from the last decade may have resided Fine, who has served as the inspector general at the U.S. Department of Justice since 2001, is leaving the office on Jan. 28. "It has been a great job, a great run," Fine said. "I've been doing It for 10 and a half years and I've been in the office 16 years. The time has come for a new chapter. In the past 10 years, Fine and his team have led a series of special investigations into a department awakening to — and often making missteps in — the post-Sept. 11, 2001, world. They've also grappled, In some of the department's darkest hours, with a DO) enmeshed in partisan politics. Not surprisingly, Fine continues to put “restoring confidence in the Department of Justice" on his annual list of the 10 most important management and performance challenges facing the department. "I think the department has come a significant way,” he said in an interview last week. “It has addressed the issues we found in politicized hiring matters. 1 think it has work to do — work in terms of prosecutorial issues. But I think they're making good progress." The political issues dominated Office of Inspector General investigations at the end of the Bush administration, In 2008 alone, the office produced reports on investigations into the removal of nine U.S. attorneys in 2006; allegations of the mishandling of classified documents by former Attorney General Alberto Gonzales; allegations of politicized hiring by Monica Goodling and other staff in the Office of the Attorney General; and allegations of politicized hiring in the Department of Justice Honors Program and Summer Law Intern Program. {As Fine prepares to leave office, groups involved in some of the issues that he probed, former colleagues and lawmakers agreed that he has built a reservoir of respect throughout government for his office's work because ofits fact-based reports, thorough analysis and apolitical approach. “I think he was very good at looking at big-picture issues that wouldn't normally be part of an inspector general audit," said Danielle Brian, executive director of the Project on Government Oversight. "His work on national security letters and the FBI was a seminal piece of work." Many inspectors general, she said, fail to think of subjects that don't normally fit into their semiannual reports. "If you want to know what motivates Glenn — and it sounds corny — he cares very, very deeply about the role that the Department of Justice plays in our national government and in the life of our country," said Fine’s former deputy, Paul Martin, now inspector general of the National Aeronautics and Space Administration. "He ‘saw his role and the office's role as one to protect against any abuse of the public trust.” LOOKING BACK Tapped to lead the office in December 2000, Fine has had a tenure dominated by post-Sept. 11 issues. He and his team reviewed the treatment of undocumented aliens in the aftermath of the attacks. They prepared multiple reports on the implementation of the USA Patriot Act, as well as one on President George W. Bush's surveillance program. They reviewed the FBI's handling of intelligence information before the Sept. 11 attacks and the bureau's use of national security letters, business records, exigent letters and requests for telephone records. They also reviewed its involvement in interrogations of Guantdnamo Bay, Cuba, detainees. Of the hundreds of audits and special reports that he has led, Fine, a Rhodes scholar and Harvard Law School grad, considers the 2003 investigation of the government's detention of undocumented immigrants after the 1/26/2011 1:06 PM20f3 _itp:/www law. comijsp/nlj/legaltimes/PubArticleFriendlyLT jsp?id.. Sept. 11 attacks to be his most challenging and important. “The department and the FBI detained many of them and held them in the Metropolitan Detention Center in Brooklyn," he recalled. "We found some significant problems in the way they were held — they were not given Notice of charges, were often held incommunicado and some were physically and verbally abused.” Getting information in the investigation was difficult early on, he said, but his office worked it out through the department and was able to do a broad-ranging review of actions by the department, the FBI and the Bureau of Prisons. “Initially there were those who disagreed with It. Some wondered why we cared about undocumented aliens," Fine said. "But in a time of crisis and a very difficult time in our history, itis important that we look at these things and ensure the department Is acting in accord with Its obligations. The department looked at our recommendations and implemented them, It had an impact on the department in the future." ‘That report also was one of the first — if not the first — government-agency critique of government actions post Sept. 11, Martin said. "This wasn't some outside group complaining about the misuse or overzealous use of authorities," Martin said. "The country and all of us were still quite raw from the immediacy of the attacks. It was very challenging In a lot of different respects. Fine also said his office's investigation of the FBI's use of so-called national security letters also stands out. “The FBI was given this important and significant responsibility but it turned out that it did not implement sufficient controls," he said, "When we Issued that report, it was @ wakeup call to the FBI." That report “is the only public accounting for a Patriot Act tool ever, in almost 10 years," said Michelle Richardson of the American Civil Liberties Union. "No one would ever have guessed that 40,000 to 50,000 national security letters were being issued until this report came out.” Fine said his office is committed to regular reviews of Patriot Act tools. "It’s an important area, and there are other areas where we will be following up for the long run," he said, noting that the office currently is doing follow-up reviews of the FBI's terrorist screening center, its terrorist watch list and Its upgrade of its Information technology center — the so-called Sentinel system. A SINGULAR DISAPPOINTMENT. In the past decade, Fine's office has grown in size and responsibilities, Today, he supervises 440 employees. ‘The most important change in the office's duties came with the Justice Department's restructuring and reorientation in the aftermath of the Sept. 11 attacks, Fine said. "The department's primary focus and responsibility became counterterrorism and, as a result, we increased our oversight of its counterterrorism efforts,” he said. Although the office's responsibilities have increased, one area has defied its oversight, despite Fine's active support. "I've said publicly we ought to have oversight of the department's attorneys as well, and we ought to hhave jurisdiction there," he said. "Every other inspector general has unlimited jurisdiction over their agency, including its attorneys, except the Department of Justice's inspector general.” The Office of Professional Responsibility (OPR) has jurisdiction over the attorneys in the exercise of thelr duties. "T think we ought to have that and the exercise of first refusal. We are independent and transparent," he said. His office's lack of jurisdiction over the attorneys, he sald, Is an “historical anomaly" because the OPR existed before his office. The underlying issue, he said, is the lack of independence of those now investigating allegations of attorney misconduct. "I believe it should happen, but It is not something that Is going to happen today or tomorrow," he said. "It's not on anybody's front burner at this point." In fact, instead of expending the inspector general's jurisdiction to include department attorneys, Attorney General Eric Holder Jr. last week announced the creation of a new unit within his own office to review misconduct findings by the Office of Professional Responsibility. In his job, Fine said, "There is never a time when you can say, 'I'm completely done.’ There are always reviews.” His office Is currently engaged In reviews of the Office of Pardon Attorney, the Foreign Intelligence Surveillance Act and the department's enforcement of the Voting Rights Act, among others. His hope, he said, Is that his successor will continue the office's independent and aggressive oversight. Fine has "cemented the reputation of the department's office of inspector general as the pre-eminent office of Inspector general in the federal government," said his predecessor, Michael Bromwich, director of the Interior Department's Bureau of Ocean Energy Management, Regulation and Enforcement. "It'should be easier In some ways to find a successor because people are aware now of the impact of the job and the significance of the issues,” Bromwich said 1/26/2011 1:06 PMIntp:/hvww law.comjsplnlj/legaltimes/PubArticleFriendlyLT jsp?id. ‘As for Fine, 54, he is seizing the rare opportunity of time to explore how to write his next chapter. His only duty after Jan, 28, the father of twa said, Is "I've been told I'm In the car pool.” Marcla Coyle can be contacted at mcoyle@alm.com. 3 0f3 1/26/2011 1:06 PMEXHIBIT BPage | of $ 1 of 1 DOCUMENT. USA TODAY December 28, 2010 Tuesday FINAL EDITION Prosecutor misconduct lets convicted off easy; In worst cases, the guilty go free BYLINE: Brad Heath and Kevin MeCoy SECTION: NEWS; Pg. 1A LENGTH: 3058 words James Strode hid his face with a scarf the evening he walked behind a counter in a Seattle Rite Aid pharmacy, grabbed a clerk by the throat and threatened to stab her or other workers who heard her call for help on an intercom, "Give me all the money," he barked, "Somebody better give me some money or someone is going to get stabbed.” ‘The November 2006 robbery, detailed in a police report, was one of the most menacing episodes in a criminal career that spanned two decades and four states. Strode's record includes convictions for atleast three burglaties, one robbery, a theft, an attack on a public safety officer and a bank robbery tried in federal court ‘Strode might well have been in federal prison at the time of the Rite Aid robbery, But the bank robbery conviction and sentence that could have kept him there were wiped out in 2000, when an appeals court concluded that the federal prosecutor in charge of Strode's trial had "crossed the line” by making improper arguments to the jury. So instead of keeping Strode behind bars for a decade, the U.S. Justice Department agreed he could be released in less than half that time. About 13 months after he got out, Strode held up the Seattle pharmacy. ‘What happened to Strode underscores one of the least recognized consequences of misconduct by Justice Department attorneys in charge of enforcing the nation’s laws. Although those abuses have put innocent people in prison, misconduct also hhas set guilty people free by significantly shortening their prison sentences, In some cases, they served no additional time, New crimes sometimes followed. AUSA TODAY investigation has documented 201 cases since 1997 in which federal courts found that prosecutors violated laws of ethigs rules. Each was so serious that judges overturned convictions, threw out charges or rebuked the prosecutors. ‘And although the violations tainted no more than a small fraction of the tens of thousands of cases filed in federal courts each year, legal specialists who teviewed the newspaper's work said misconduct is not always uncovered, so the true extent of the problem might never be known, USA TODAY found that in at least 48 of those cases, the defendants were convicted but, because of prosecutorial misconduct, courts gave them shorter sentences than they would have received otherwise. If prosecutors’ chief motive for bending the rules is to ensure that guilty people are locked up, their actions often backfire. In Washington, D.C., alone, court records show the Justice Department agreed to shorter prison sentences for atleast eight convicted murderers during the past decade after judges and defense attomeys discovered that prosecutors had improperly ‘concealed evidence that could have helped the defendants and their attorneys contest the charges. ‘The letest such deal came in March, when prosecutors agreed to an eight-year sentence for a defendant who fatally stabbed a 45-year-old man in front of two young children, Bill Miller, a spokesman for the U.S. Attomey's Office in Washington, said Monday that seven of the eight convicted 821%3A265074663&fromCar... 1/26/2011 http:/w3.nexis.com/new/delivery/PrintDoc.do?jobHandle-Page 2 of 5 murderers were prosecuted "by a single lawyer who left the office more than 15 years ago, hardly a systemic problem" in an office of mote than 300 prosecutors. "One mistake is a mistake too many,” Miller said. "But those mistakes must be placed in proper context." USA TODAY's examination, based on tens of thousands of pages of government documents and court records, found that such arrangements -- including promises of lenient sentences -- are common when courts overturn convictions because of misconduct by prosecutors. They bring a quick end to cases that could embarrass the department or those in which the passage of time weakens the government's case. In most eases, the arrangements call for defendants to plead guilty to a crime in exchange for a shorter sentence than they originally received, ‘The plea bargains give both sides an opportunity to cut their losses, says Laurie Levenson, a former federal prosecutar who teaches at Loyola Law School in Los Angeles and who reviewed USA TODAY's research, “From the prosecutors’ point of view, they just want to put that one aside and move on, That's an unpleasant memory," she says. Justice Department officials did not comment on the practice of granting plea agreements after misconduct findings. Instead, spokeswoman Jessica Smith said Monday that USA TODAY's investigation "misleads readers by providing a statistically inaceurate representation of the hard work done by federal prosecutors .. by cherry-picking a handful of examples dating back to the 1990s and confusing cases where attorneys made mistakes with cases where actual prosecutorial misconduct was involved.” ‘Nonetheless, department records and court files from across the nation show that some of the people who walked away with shorter prison sentences because of misconduct returned to crime almost as soon as they went fiee. Strode, whose police, prison and probation reports show some substance abuse and a fondness for tattoos, was among them. Seattle police arrested Strode for the Rite Aid robbery a few minutes after he fled the store; he was trying to escape on & public bus after taking four cartons of cigarettes from the store, That crime put him in state prison for two years, Authorities soon were looking fr him again "Severe misconduct” ‘The police usually knew where to find Anthony Washington, too \Weshingion was in middle school the frst time he was arrested for selling illegal drugs in New Haven, Conn, By the time of hhis most recent arrest, in 2008, federal prosecutors charged that Washington had established himself as a "significant" supplier of PCP ~ a drug that can cause hallucinations ~ forthe city's drug dealers. ‘Washington could have been in federal prison instead of selling PCP. But the case that almost put him there came to an abrupt end four years earlier, after a judge found that the federal prosecutor in charge had committed "severe misconduct” that let her no choice but to overturn Washington's conviction. ‘The case began in 2001, when a tenant in the apartment building where Washington's girlfriend lived called police to report seeing Washington with a gun. It was not the first time Washington had been arrested on a gun charge. Because he already hhad a long felony record in 2001, his possessing a gun was a federal crime, The charge could have put Washington in prison for up to 10 years; after a short trial, a jury found him guilty But court records indicate that the prosecutor never told Washington's attorney that his accuser -- who died before the trial previously had been convicted of filing a false police repor, a fact that should have been disclosed. Prosecutors maintained in ‘court filing that they were unaware of the charge. Beyond that, U.S. District Judge Janet Arterton said the prosecutor had posed a "barrage" of impermissible questions fo Washington's girlfriend during the trial about conversations with him and had brought up a previous shooting she had ruled inadmissible, ‘The violations were so serious that Arerton wrote she could not “confidently say that a conviction would have been obtained inthe absence of the misconduct." She throw out the jury's guilty verdict. Instead of trying Washington again, the Justice Department dropped the charges, saying in a court filing that a new Supreme 821%3A265074663&fromCar... 1/26/2011 hitp://w3.nexis.com/new/delivery/PrintDoc.dojobHandle-Page 3 of 5 Court ruling made it unlikely that jurors would get to hear the tape of the tenant's 911 call, Washington, who had been jailed while the government decided whether to retry him, went free, Because his tial was tainted, there is no way to know for sure whether Washington committed the crime, though he insisted in an e-tnal from prison that he did not. But there is no doubt that he returned to drugs and crime almost as soon as he was released. Two months later, the police charged Washington with interfering with a police officer. Another drug arrest followed, records show. "We told him that whatever he was doing, to stop it, stop selling it,” Washington's grandmother, Vergie Strother, says Other relatives say there was little they could do. Washington started selling drugs before he tumed 13, according to court records that offer glimpses into his youth. He started using marijuana and PCP not long after that. His mother used crack, and relatives say Washington sold drugs as a child to take care of his brother and sisters. Sometimes his mother asked him for money to buy drugs, As an adult, he spent more Christmases in jal than he did at home, Washington did not deny that he sold drugs, "It was fast money, and I could not get a job. But I had to support my family and kids,” he said in an e-mail “He was trying to be the man of the house, trying to take care of his mother and sisters and his brother," Strother says. "At the age of 12, he was out there. .. He's been out there ever since.” In December 2007 -- on the day he finished parole from another arrest -- Washington sold $500 worth of PCP to an FBI informant. Two months later, the FBI tapped Washington's cellphone and recorded him making plans to bring liquid PCP from New York to New Haven, Federal prosecutors ultimately charged that Washington had been involved in transactions involving at least 400 grams of PCP, described as an "enormous quantity" of the drug, ‘Washington, now 34, pleaded guilty in 2008, Cathy Strother, his aunt, says she hopes federal prison changes him. "I'm hoping he's going to be straight when he comes out," she says. He is scheduled to be released in 2017, "Do guilty people get out because prosecutors break the rules? Yeah," says Joe Lawless, a Philadelphia defense lawyer and the author of one of the nation's first textbooks on prosecutorial misconduct, "That's why the rules are there. It's by ‘maintaining those rules that the system is going to work.” ‘trade's plea deal ‘The closest thing there is to a biography of James Joseph Strode might be the accumulation of reports in police stations, ‘courthouses and prisons across the Wester United States. They detail a theft conviction in California that resulted in a 16- ‘month state prison sentence, then more charges in Arizona, Oregon and Washington, In 1998, Strode came to the Justice Department’ attention after police arrested him for the unarmed robbery of a Beaverton, Ore., Bank of America branch. Police found Strode about a mile away from the bank. In his mother’s apartment, they found a jogging suit like the one the robber had worn. Tellers at the bank identified Strode as the robber. ‘A jury had no trouble finding him guilty, even though his mother, a Vietnamese immigrant, testified he couldn't have gotten inio her home to either get or dump the incriminating jogging suit. The tral judge sentenced him to almost 10 years in prison. ‘Two years later, the U.S, Court of Appeals for the 9th Circuit threw out Strode's conviction because of the way the prosecutor had handled the case, Its order said the prosecution, led by Assistant U.S. Attorney Fredric Weinhouse, had "crossed the line" by appealing to jurors’ fears about crime and by assuring jurors that a prosecution witness was telling the truth, both practices that courts have long said are improper. The court also said police had been too "suggestive" when they asked a clerk from a nearby Texaco station to identify Strode from a photo array. Instead of putting Strode on trial again, the government agreed to a deal. Strode pleaded guilty and was sentenced to 55 ‘months in prison, slightly less than half of his original sentence. He left federal prison in October 2005. About two months later, police records in Seattle show that Strode burglarized the loading dock of a Macy's store anda ‘Seattle municipal transportation facility. He pleaded guilty and was locked up for eight months. Then he robbed the Seattle pharmacy and spent two more years in prison. Three months after that, he was charged with misdemeanor assault of public http://w3.nexis.com/new/delivery /PrintDoc.do?jobHandle=1821%3A265074663&fromCar... 1/26/2011Page 4 of 5 safety officer and related crimes in Portland, Even so, by 2009 there were signs that Strode's life was turning a corner. His probation officer, Joe! Robison, says Strode had moved into a group home that specialized in treating mental health problems. Robison says Strode seemed "sort of damaged from all the years of doing whatever (drugs) he was doing." A.case is closed ‘The most recent chapter in Strode's biography began during the pre-dawn hours of Oct, 1, 2009. Three Portland convenience stores were hit by a robber police believe was Strode. ‘Then, barely disguised beneath the hood of a gray sweat shirt, Strode walked behind the customer service counter of an Albertsons supermarket in nearby Aloha about 11 a.m. He flashed a black-handled steak knife at the two young women, ‘working there, The incident was captured on a store security camera, "Open the till; open the tll or Fl cut you," Strode wamed, according to the account the women later gave investigators ‘As the women backed away, he scooped $715 out ofthe cash register, darted out the front door, dumped the knife and sweat shirt in a nearby trash ean, and jumped onto a public bus, ‘That night, a sheriffs office report shows, he hung out with friends outside a Portland MeDonald’s. He said he felt ill but didn't go back to the group home. Instead, the girlfriend of one of Strode's friends a woman who told the police she didn't even know his frst name ~ lt im sleep on the floor of her second-floor apartment, across the street from the city’s minor-league ballpark, She gave him a blanket and a pillow. Roughly two hours before sunrise, the woman says, Strode was sprawled on his back, unresponsive, hands spread out, ‘Authorities found a fresh needle mark on the inside of his right elbow, an unused heroin cooker in the left pocket of his jeans, and a cocktail of heroin and cocaine -- known colloquially as a “speedeall” ~ in his veins Police and the county medical examiner's office wrote one last report for Strode's files: He was dead at age 42. List Plea bargains follow prosecutor errors USA TODAY documented 201 cases since 1997 in which federal courts ruled that prosecutors had violated laws or ethics rules, Some of those violations put innocent people in prison, but in at | east 48 cases defend ants were later convicted, then had their sentences reduced or were even set free. Among those cases In court The outcome U.S. v. Weatherspoon: Kendrick Weatherspoon was convicted in 2003 in U.S. Distriet Court in Nevada of being a felon in possession of a firearm. The U.S. Court of Appeals for the 9th Circuit overturned the conviction and ordered a new trial in 2005 because prosecutor Darin LaHood had made improper arguments at trial. LaHlood told jurors they should believe the police officers who testified against Weatherspoon and should convict him because it would "make you comfortable knowing there's not convicted felons carrying around semiautomatics." The case was the third in two years in which the Appeals Court said improper statements by LaHfood, son of Transportation Secretary Ray LaHood, required it to ‘overtum a conviction. Weatherspoon had been sentenced originally to 10 years in federal prison, After the court overturned his conviction, the government entered a plea agreement with Weatherspoon, and he was sentenced to three years instead ‘Weatherspoon, who had been remanded in October 2003, was released in June 2006 on time served. Just two months after being freed, he tested positive for marijuana, a violation of his supervised release. Weatherspoon was subsequently retumed to prison for 15 months. At the request of the U.S. attomey's office, the Appeals Court deleted the name of LaHood, the prosecutor, from its opinion. U.S. v. Gentry: Natasha Gentry was convicted in 2007 of aiding and abetting in possession with intent to distribute 50 grams or more of methamphetamine and of carrying a firearm during a drug-trafficking crime. After her arrest, she invoked her constitutional right to counsel and declined to answer questions from police. At trial, the prosecutor brought her silence to the jury's atention, both when Gentry testified and during the government's closing 821963A265074663&fromCar... 1/26/2011 http://w3 .nexis.com/new/delivery/PrintDoc.do?jobHandle-Page 5 of 5 arguments. Gentry, who was sentenced to 10 years in federal prison, appealed her conviction on grounds thatthe prosecutor had violated her legal rights. In 2009, the U.S. Court of Appeals for the 8th Circuit concluded the government improperly "inquired into Gentry’s silence,” a violation of her Fifth Amendment rights, The ruling reversed the conviction. Gentry originally was sentenced to 10 years in prison. After her conviction was overturned, she struck a deal with prosecutors: She pleaded guilty to a misdemeanor count of possession of methamphetamine and was sentenced to 12 months in jail. Because Gentry had already spent atleast that much time in jail, she was released immediately. U.S. v. Torres-Ramos: Defendant George Torres-Ramos, an owner of the Los Angeles grocery store chain Numero Uno, was charged in 2007 in a 60-count indictment. The charges included running a racketeering enterprise in which he solicited three murders, bribed a public official and harbored undocumented immigrants. After some charges were thrown out, the jury convicted Torres-Ramos in April 2009. The conviction was based in part on the testimony of two convicted drug dealers, both inmates in a federal prison, who had been interviewed by a Los Angeles police detective. Several months after tral, the government acknowledged violating discovery rules, and U.S. District Judge Stephen Wilson threw out the jury's verdict, The detective had promised both inmates that they would be released from long prison sentences in exchange for their testimony. One was also offered "big money." The defense had leamed some of this independently, but the judge ruled the government should have made full disclosure, The judge said he was "disturbed by the government's conduct in this case.” The government chose not to retry Torres-Ramos, who was released from jail on June 9, 2009; he had served two years while the charges were pending, As part of an agreement with prosecutors, he subsequently pleaded guilty to one count of willful failure to withhald taxes from employees! wages. He was sentenced to one year in prison, with credit for time served. Reported by Kevin McCoy and Brad Heath, USA TODAY LOAD-DATE: December 28, 2010 LANGUAGE: ENGLISH GRAPHIC: PHOTO, Color, Washington County (Ore.) Sherif?’ Office PHOTO, Color, Multnomah County Sherf?'s Office PHOTO, Color PHOTO, BIW, Dan MaeMedan, USA TODAY PHOTO, BIW, Courtesy of Joe Lawless PHOTO, BIW, Connecticut Department of Corrections DOCUMENT-TYPE: COVER STORY PUBLICATION-TYPE: NEWSPAPER Copyright 2010 Gannett Company, Ine. All Rights Reserved http://w3.nexis.com/new/delivery/PrintDoc.do?jobHandle=1821%3A265074663&fromCar... 1/26/2011EXHIBIT CPage 1 of 2 1 of | DOCUMENT USA TODAY January 19, 2011 Wednesday FINAL EDITION Justice Dept. unit to punish lapses; Discipline was slow against prosecutors BYLINE: Brad Heath and Kevin McCoy SECTION: NEWS; Pg. 1A. LENGTH: 492 words WASHINGTON ~ The Justice Department created a new internal watchdog office Tuesday to make sure federal prosecutors face swifter and more consistent punishment if investigators find that they committed misconduct. ‘The change comes after USA TODAY investigation that identified 201 criminal cases in which federal courts had found that Justice Department prosecutors had broken laws or ethics rules -- violations that put innocent people in jail and set guilty people free. Although each of the cases was so serious that judges overtumed convictions or rebuiked the prosecutors for misconduct, USA TODAY found that the department often took years to investigate what went wrong, and that prosecutors faced little risk of being fired ‘Attomey General Eric Holder said in a statement Tuesday that while most federal prosecutors meet their ethical obligations, the current procedures for disciplining those found to commit misconduct “consume too much time, and risk inconsistent resolution.” He said the new unit "will help change that by providing consistent, fair and timely resolution of these eases,” ‘The unit, called the Professional Misconduct Review Unit, willbe responsible for diseiplinng eareer prosecutors when the department’ ethics investigators conclude that they engaged in intentional or reckless misconduct, Until nov, those decisions had been made by the prosecutors’ supervisors, most often U.S. attorneys. The department has faced criticism for not doing enough to investigate and punish misconduct. Holder wrote in a memo that those procedures “have resulted in delays" because the officials in charge of discipline are also busy with other things. The new unit will have to make decisions more quickly, and will also be able to report misconduct to state bar associations. It will review findings of misconduct that occur after itis fully staffed. “This is serious business. It’ a sign of a lack of faith in the Behavior of U.S. attomeys around the country," said Joseph diGenova, a former U.S. attorney in Washington, D.C. "The message is, ‘Manage your office and impose discipline, or we will!" Laurie Levenson, a former federal prosecutor wiio's now a professor at Loyola Law School in Los Angeles, applauded the cffort to segregate and speed the handling of the most serious misconduet cases. "Not all prosecutorial misconduct cases are alike," she said ‘The announcement is the latest step Holder has taken over the past two years to address ethical lapses by the attorneys in charge of enforeing the nation’s laws. These efforts came after the government's failed corruption prosecution of former Alaska senator Ted Stevens, which ended in 2009 after the department conceded it had hidden evidence that could have undermined the case against him. The judge who supervised Stevens’ trial launched his own investigation of the case, saying hie did not trust the department to investigate itself. That review is still ongoing. LOAD-DATE: January 19, 2011 LANGUAGI NGLISH hitp://w3 .nexis.com/new/delivery/PrintDoc.do?jobHandle=1821%3A265074582&fromCar.... 1/26/2011EXHIBIT DOffice of the Attorney General Washington, B.C, 20530 vanuary 14, 2011 MEMORANDUM FOR H. MARSHALL JARRETT DIRECTOR, EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS LANNY A. BREUER, ASSISTANT ATTORNEY GENERAL. CRIMINAL DIVISION LEE J. LOFTHUS ASSISTANT ATTORNEY GENERAL. JUSTICE MANAGEMENT DIVISION RAYMOND C. (NEIL) HURLEY ACTING COUNSEL OFFICE OF PROFESSIONAL RESPONSIBILITY LOUIS G, DEFALAISE DIRECTOR, OFFICE OF ATTORNEY RECRUITMENT AND MANAGEMENT ALL UNITED STATES ATTORNEYS FROM: ‘ATTORNEY GENERAL SUBJECT: Creation of the Professional Misconduct Review Uni This memorandum announces the creation of the Department's Professional Misconduct Review Unit (PMRU). In an effort to facilitate timely, fair, and consistent resolution of disciplinary matters arising out of findings of professional misconduct by the Office of Professional Responsibility (OPR), OPR along with the Executive Office for United States Attomeys (EOUSA), the Criminal Division the Justice Management Division, and the Office of Atlomey Recruitment and Management (OARM) recommended creation of an adjudicatory unit to resolve such disciplinary matters for employees in those components. The Attomey General's Advisory Committee also concurred in the recommendation. ‘As I have consistently said, as a result of their commitment to the cause of justice and the hard work that results from that commitment, Department attomeys fully meet their ethical obligations in all except the rarest of cases. However, when allegations of misconduct do arise, timely, fair, and consistent resolution of those allegations is critical both to the attorneys who areMemorandum for Heads of Departments Page 2 Subject: Creation of the Professional Misconduct Review Unit the subjects of the allegations and to the Department's obligation to address those rare instances when Department attorneys fail to meet ethical obligations. Because the proposed PMRU will be effective towards achieving its intended objectives and because those objectives are consistent with the Department's responsibilities, I have adopted the proposal. The PMRU initially will adjudicate only those cases involving employees of the recommending components. | anticipate, however, that the other litigating components will participate in this process over time. The PMRU will also assume responsibility for making referrals to state bar disciplinary authorities consistent with current Department policy. The PMRU process will be effective for OPR findings of professional misconduct occurring after the PMRU is fully staffed. OPR has jurisdiction to investigate allegations of misconduct involving Department attomeys that relate to the exercise of their authority to investigate, litigate, or provide legal advice, as well as allegations of misconduct by law enforcement personnel related to allegations of attomey misconduct within the jurisdiction of OPR. OPR investigations can result in a finding ot findings of intentional professional misconduct, reckless professional misconduct, poor Judgment, or excusable mistake, or OPR can conclude that an attorney acted appropriately under the circumstances. Under the existing process, once OPR completes an investigation, it prepares a Report of Investigation (ROI) containing its findings and conclusions, and provides that report to the Office of the Deputy Attomey General (ODAG), as well as to the appropriate Assistant Attorney General, the Director of EOUSA, or other appropriate component head. If OPR finds professional misconduct, it recommends a range of disciplinary action for consideration by the attorney's supervisors or other appropriate disciplinary officials. In cases of poor judgment, OPR refers the matter to the attorney's supervisors for any appropriate action, If management disagrees with OPR’s professional misconduct findings and/or recommended range of discipline, it may submit to an Associate Deputy Attomey General (ADAG) a request to depart from either the findings or the disciplinary range. The ADAG then determines whether to authorize the requested departure, to reassign the matter to another component-frequently OARM-for imposition of discipline unconstrained by OPR’s findings and Fecommendations, or to retain the matter for imposition of discipline by officials within ODAG. Because the involved Department employees handle these matters as only one of many assigned responsibilities, the existing procedures have resulted in delays in completion of the disciplinary process. In addition, the current process creates the risk of inconsistent resolution of disciplinary actions involving similarly situated employees. ‘The creation of a PMRU exclusively dedicated to the resolution of disciplinary matters arising out of findings of professional misconduct within established time limitations will not only reduce delays but also permit consistent resolution of matters involving similarly situated employees. The PMRU Chief will administer procedures designed to provide DepartmentMemorandum for Heads of Departments Page 3 ‘Subject: Creation of the Professional Misconduct Review Unit attomeys a fair opportunity to contest findings of professional misconduct, and to contest proposed disciplinary actions arising from those findings, that are fully consistent with the requirements of federal law and regulations governing adverse actions involving federal employees. The PMRU will administer these procedures within established deadlines and will periodically report to the Deputy Attorney General (DAG) regarding the PMRU’s compliance with those deadlines, In addition, the PMRU will notify the DAG of its final determinations within established time frames, For those actions taken by the PMRU Chief that the subject may grieve, ODAG will hear and resolve the grievance likewise within established time frames. 1am firmly convinced that the new PMRU will result in consistent, fair, and timely resolution of disciplinary matters arising out of allegations of professional misconduct, and I appreciate the efforts of those components that worked so hard to develop a process that will serve the Department well as we continue to confront all of the challenges that we face. In the vast majority of cases, Department attorneys meet their professional obligations. When allegations of misconduct arise, however, both Department attomeys and complainants deserve a fair, consistent, and timely resolution of disciplinary matters arising out of those allegations, and the PMRU will facilitate each of those aims,